Stop letting the TWU controversy make fools of the Canadian bar

It came to my notice that my last post on the British Columbia Law Society’s handling of the accreditation of Trinity Western Law School may have appeared at odds with a prior entry encouraging a negotiated solution. In the September 26 post, “B.C. Law Society abdicates self-governance in favour of non-governance,” I stated that the decision to refer the decision to a referendum before the expiry of a statutory 12-month period was an abdication of the Law Society’s duty to govern the affairs of the legal profession. Further, the referendum option can only be invoked by a petition from the membership, not the governing benchers.

It should also be noted that the Law Society handed the decision over to the governed members, with regard to a matter that does not affect them internally as members, but rather a matter of external public policy over prospective members. In regard to such external policy, only the governors should be considered to have original jurisdiction and expertise, not the governed. The benchers should have stuck to their decision to accredit, or should have reconsidered it. If they maintained their accreditation, they would nevertheless owe the public a duty to work with the university to find accommodation for those who suffer exclusion. If they reversed their decision and adopted the Ontario position against accreditation, they would owe a duty to the university to work toward an accommodation of religious freedom.

From comments and tweets readers have kindly provided, I have connected the dots and see these posts, combined, define a categorical imperative for the bar in Canada to negotiate a resolution. B.C.’s governing body deserves criticism over its September 26 decision. In Ontario and Nova Scotia, it is up to the university to suspend the judicial review proceedings to allow the Law Society of Upper Canada and the Nova Scotia Barristers Society to open a channel of communications. It is really time for the Canadian legal profession to stop the “lofty and passive” approach and show the Canadian public that lawyers can do what the public expects us to do: peacefully resolve seemingly intractable differences and enable both freedom and equality in the nation’s civic affairs. If we do not do this, or at least fail trying very hard, we do not deserve the privileged and independent position we hold in Canadian society.

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One thought on “Stop letting the TWU controversy make fools of the Canadian bar”

“Would appear quite maddening, but perhaps the Law Society of B.C. preferred not to be sued. I often use “negotiated resolutions” to avoid appeals and obtain finality, as consents can’t be contested. In civil litigation, a compromise solution can be the best route in situations of high risk and many possible outcomes that might be worse, as well as to avoid huge legal costs. But not on matters of principle and human rights. This TWU affair is a scandal of relativism.”

I would like to clarify the categorical imperative described in my post. The concept of the categorical imperative, often attributed to Kant, actually integrates with many aspects of our culture searching for a fairness formula, from the Christian doctrine of doing unto others, to the neighbour principle in modern tort law. Recent research on primates with economic scenarios such as the “Ultimatum Game” (very similar to the TWU – LGBTQ dichotomy) show that the search for fairness and exchange is hard-wired into our brains.

To elevate gender-identity equality rights over religious freedom can be fraught with danger because it can be based on an incorrect premise that belief is a facultative choice. This is anti-religious discrimination for the same reason that a belief that gender identity should be discounted as a facultative choice is discriminatory. One does not necessarily choose a religion like one chooses a career at a job fair.

However one becomes a Christian, Jew or Muslim, religious identity is not discretionary but a challenge. You can see this both in the Passion and in the Everyman story, versions of which permeate the human story. For example, the account of Jesus’ life including siding with the adulteress against those who stood in judgment over her, is at odds with the Pauline doctrine, based on Old Testament teachings, which would have justified stoning her and other acts of intolerance. It is at odds with the idea of flooding the planet to exterminate non-believers. Few would choose to torment oneself with the belief that the contradictory messages in the Bible are all true. Fundamentalist Christians believe that they are all true, and that the contradictions and mysteries are burdens we are destined to bear until we are reunited with Jesus. It is a struggle through life for believers which secularists must show compassion, just as we demand that believers show compassion for the LGBTQ community.